25 January 2012

Just a (bite-sized) bill

After the collapse (for now, at least) of SOPA and PIPA last week, there was a rash of opinion pieces like this one in Information Week Daily, basically saying, "okay all you naysayers, where's your alternative?" This bit of rhetoric fails in two basic ways. Firstly, it begs the question (in the "classical" or "right" use of the phrase) that there is a problem that needs solving. Secondly, it assumes that Viacom's problems are everyone's problems, and that by opposing a bad piece of legislation we are now obligated to support another bill, instead of doing the sensible thing and returning to our freewheeling and unrestrained downloading of copyrighted works, hastening the eventual collapse of civilization.

But in an effort to be more positive (it's a new year's resolution of mine) I have decided to take up the challenge and offer some alternative ideas for intellectual property bills to be brought before Congress in place of SOPA. Not having a lobbyist at hand or a medium-to-large fortune to donate to the reelection campaigns of my Representative, Stephen Lynch, or my Senators, Scott Brown and John Kerry, I'm doing the next best thing by offering these up on my blog, which on a good day gets at least two dozen views. SOPA and PIPA were targeted at protecting copyright, but in the next few days I'll go one step further and give two suggestions for reform of each of the three branches of intellectual property: copyright, trademark, and patent.

All joking aside, my goal with this exercise is to come up with bills that might actually stand some chance of passing, given a supporter in Congress. There are a lot of terribly wrong things about IP law, but the odds of sweeping reforms like rolling back the length of copyright terms or disallowing software patents are approximately none in infinity. So my suggestions will be limited to very simple bills that should be able to garner public support, while at the same time be difficult for rights holders to oppose without looking like dicks.

Copyright act #1

Being resolved that Fair Use entitles rightful owners of copyrighted materials free access to the works that they have purchased, circumvention measures employed by said owners to access arbitrarily any section of a work they have purchased are to be allowed.

Otherwise known as the "Skip Previews Act." Manufacturers of DVD and Bluray players are obligated to abide by license agreements which include not being able to avoid commercials and previews that are flagged as unskippable. The Digital Millennium Copyright Act makes all acts of "circumvention" illegal, preventing home users from modifying players to access any part of the disk that they bought. This effectively stifles Free Use, as anyone who has ever tried to show a segment of video in a classroom can attest. It is also super annoying, as anyone who wants to watch the damn film already can tell you.

Copyright act #2

Being resolved that the motivations for infringement of copyrights affects the culpability of the infringer, violations will be graded: 1st degree, 2nd degree, and unintentional.

Otherwise known as the "I only put my daughter's dance recital on YouTube Act." The (unskippable) FBI anti-piracy notice at the beginning of your DVDs lists some pretty severe penalties for unauthorized copying: up to five years in prison, up to a $250,000 fine. The severity of these punishments reflects an earlier time when mass copying was expensive and difficult enough that it was always an intentional act to defraud. But today digital copying has made infringement ubiquitous and practically unavoidable. At the same time, we recognize the difference instinctively between someone who sells unauthorized copies of an artist's work and someone who makes a home movie of their kids bopping along to "Whip My Hair." Shouldn't our penalties reflect this common-sense understanding?

Continued tomorrow, when I offer my humble suggestions for bite-sized trademark reform.